“CONCEPT OF MEDIA TRIAL AND INDIAN CRIMINAL JUSTICE SYSTEM”

ANUJ VISHWAKARMA
Sap Id - 500053196
Roll No.- R450216016

SUBMITTED UNDER THE GUIDANCE OF: Ms. Nandini Biswas

This dissertation is submitted in partial fulfillment of the degree

of:

B.A., LL.B.(Hons.)

Specialization in Energy Laws

2016-2021

SCHOOL OF LAW

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

DEHRADUN
 CERTIFICATE

This is to certify that research work entitled “CONCEPT OF MEDIA TRIAL AND
INDIAN CRIMINAL JUSTICE SYSTEM” is the work done by Mr. Anuj
Vishwakarma under my guidance and supervision for the partial fulfilment of the
requirement of B.A., LL.B.(Hons.) with specialization in Energy Laws degree at School
of Law, University of Petroleum and Energy Studies, Dehradun.

(Ms. Nandini Biswas)

Signature & Name of Supervisor

Designation: Assistant professor at School of Law, University of Petroleum and

Energy Studies, Dehradun.

Date:
 DECLARATION

I declare that the dissertation entitled “CONCEPT OF MEDIA TRIAL AND INDIAN
CRIMINAL JUSTICE SYSTEM” is the outcome of my own work conducted under the
supervision of Ms. Nandini Biswas, at School of Law, University of Petroleum and
Energy Studies, Dehradun.
I declare that the dissertation comprises only of my original work and due
acknowledgement has been made in the text to all other material used.

(Anuj Vishwakarma)
Signature & Name of Student Date
 CONTENTS
Acknowledgement i-ii

Table of cases iii-v

List of Abbreviations vi-vii

INTRODUCTION 1-9

Chapter-1

SCOPE OF FREEDOM…………………. 10-22

1-Meaning and Scope of Freedom of Speech & Expression

2-Right to Criticize

3-Right to Broadcast

4-Reasonable Restrictions

Chapter-2

LIMITATIONS……………….. 23-45

1-Limitations under Indian Constitution

a) Article 129 & 215

2-Statutory Limitations

a) Article 19(2)

b) Contempt of Courts Act,1971

c) Other Statutes
 3-Press Council of India Act

4-Guidelines on Media Trial

5-Guidelines on Sting Operation

6-Self Regulatory Bodies

Chapter-3

MASS MEDIA & ITS IMPACT……………….. 46-57

1-Media & Its Impact on Fair Trial

2-Pressure on Lawyers

3-Pressure on Police Administration

4-Subconscious Effect on the Judges

5- Additional Pressure on the Jurors & Judges in High Publicity Trials

6-Law Commission 200th Report

Chapter -4

JUDICIAL ACTIVISM OF MEDIA…………….. 58-74

1- Prominent Cases on Media Trial

a) Trial of Roscoe Arbuckle

b) O.J.Simpson Murder Cse

c) Chamberlain Murder Trial

2-Cases on Media Trial in India

a) Priyadarshini Mattoo Case

b) Jessica Lal Murder Case

 c) Arushi Talwar & Hemraj Murder Case

d) Ruchika Girhotra Case

e) Bhopal Gas Tragedy Case

Chapter – 5

JUDICIAL RESPONSE…………. 75-79

CONCLUSION & SUGGESTIONS 80-88

BIBLIOGRAPHY 89-92
 TABLE OF CASES

• A.K. Gopalan Vs. The State Of Madras AIR 1951 SC 21

• A.K.Gopalan Vs. Noordeen (1969)2 SCC 734

• Attorney General Vs BBC,1981 AC 303(CA)

• Ambard Vs.A.G of Trinidad 1936 P.C(141)

• Arushi-Hemraj Murder case

• Bhopal Gas tragedy case

• Chamberlain murder Trial

• Channing Arnold Vs. Emperor AIR 1914 PC 116

• Delhi Judicial Service Assn Vs. State of Gujrat (1991)4SCC406

• Express newspaper Vs Union of India AIR1958 SC 578

• E.M.S Namboodripad Vs. Nambiar(1970)2SCC 325

• Gisborne Herald Co.Ltd Vs. Solicitor General 1995(3)NZLR 563(CA)

• Indian Express newspaper Vs Union of India (1985) 1 SCC 641

• Jessica Lal murder case

• Kalyani Baskar Vs. M.S.Sampoornam (2007)2 SCC 258

• Kedar Nath Singh Vs. State of Bihar AIR 1950 SC 129

• Kartar Singh Vs. State of Punjab (1994)3SCC 569

• Life Insurance Corporation of India Vs. Manubhai D Shah (1992)3

SCC 637
• M.P. Lohia v. State of West Bengal (2005)2 SCC 686

• Mohd Aslam Vs. Union of India (1994)6 SCC 442

• MSM Sharma Vs. Krishna Sinha AIR 1959 SC395

• Naresh Shridhar Mirajkar Vs. State of Maharashtra AIR 1967 SC

1.10.11

• O.J.Simpson murder 43 Cal 2 D 553

• Odyssey Communications(P) Ltd vs. Lokvidayan Sanghatana(1988)3

SCC 410

• Police Commr.Delhi Vs.Registrar Delhi High Court AIR 1997 SC 95

• Priyadarshini Mattoo case

• Perspective Publications Vs. State of Maharastra AIR 1971 SC

221,230

• Prabhu Dutt Vs. Union of India AIR 1982 SC 6

• Re Vinoy Chandra Mishra (1995)2 SCC 584

• R Vs Gray(1900)2 Q.B.36

• Ram Dayal Vs. State of U.P AIR 1978 SC921

• Romesh Thaper Vs State of Madras AIR 1950 SC 129

• R.K.Anand Vs. Delhi High Court (2009)8 SCC106

• Roscoe Arbuckle case

• S.Khusboo.Vs. Kanniammal & Anr AIR 2010 SC 3196

• Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr AIR 1961 SC 633
• Saroj Iyer Vs. Maharashtra Medical(Council)of Indian Medicine AIR
2002 Bom 97

• Secretary,Ministry OF I&B Vs. Cricket Association of Bengal(1995)

2 SCC 161

• Supreme Court Bar Association Vs. Union of India AIR 1998 SC

1895

• S.P.S Rathore VS. CBI Crl.Revision No.1558 of 2010

• Suba Rao Vs.Advocate General

• Scott Vs. Scott 1911 All ER

• State of Maharashtra Vs. R.J. Gandhi AIR 1997 SC 3986

• State Vs. Mohd.Afzal 107(2003)DLT 385

• Sahara India Real Estate Corp Ltd Vs. Securities & Exchange Board
of India C.A.No. 9833 of 2011

• TATA Press ltd Vs MTNL AIR 1995 SC 2438

• Zahira Habibullah Sheikh v. State of Gujarat (2004) 4 SCC 158

 LIST OF ABBREVIATIONS

• & : and

• AIR : All India Reporter

• All ER : All England Law Report

• All : Allahabad

• Art. : Article

• BCCC : Broadcasting Content Complaint Council

• CBI : Central Bureau of Investigation

• CJI : Chief Justice of India

• Cl. : Clause

• Co. : Company

• Commr. : Commissioner

• Corp. : Corporation

• Cr.LJ : Criminal Law Journal

• E.g. : Example

• Edn. Or Ed. : Edition

• FIR : First Information Report

• IBF : Indian Broadcast Federation

• Ibid : from the same place

• ILI : Indian Law Institute

• ILJ : Indian Law Journal

• Jour. : Journal

• Ltd. : Limited

• MIC : Methyl Isocynate

• NBA : News Broadcaster Association

• NGO : Non Governmental Organisation

• PC : Privy Council

• PCI : Press Council of India

• Pvt. : Private

• QB : Queen Bench

• SC : Supreme Court

• SCC : Supreme Court Cases

• UCC : Union Carbide Corporation

• UCIL : Union Carbide India Limited

• Vol. : Volume

• Vs : Verses
 “CONCEPT OF MEDIA TRIAL AND INDIAN CRIMINAL JUSTICE SYSTEM”

INTRODUCTION
Media is viewed as one of the mainstays of majority rules system. It has wide

running tasks to carry out in the general public in embellishment the assessment. It

is equipped for changing the entire perspective through which individuals see

different occasions. Opportunity of media is the opportunity of individuals as they

ought to be educated regarding public issue.1 It is in this manner unnecessary to

accentuation that a free and a sound media is basic to the working of popular

government. Opportunity of articulation is a significant right yet a privilege isn't

supreme in as much as the constitution itself,while it gives the opportunity under

Article 19(1)(a) allowed the council to force sensible limitation on the privilege

under Article 19(2) in light of a legitimate concern for different issue.

Opportunity of media being a basic piece of the opportunity of articulation is

fundamental pre-imperative of a vote based set up. The media, the powerful

Fourth Estate in a vote based system, works pair with the other three: assembly,

chief and the legal executive inside the structure of the protected arrangements

openly and public interest. Constitution producers have guaranteed that the

opportunity of articulation to be appreciated by the media doesn't come in clash

with the autonomy of equity conveyance framework and abuse by media against

such freedom of legal executive doesn't go unchecked. The media is required and

1
Kapil Sibal, The Hindustan Times, New Delhi, May 4 2001.
committed to work inside the system of Constitution and other significant

resolutions and rules outlined by the Press Council of India, the legal

administrative body for the print media in the country, and comparative different

bodies via least guidelines of morals to be noticed and followed by it so that by

noticing something very similar, media thus appreciates better expectations of

security in the matter of opportunity of articulation. It's implied that for this, a free

and reasonable legal executive is a sine qua non.

The fundamental part of the media is to illuminate, instruct and control the general

public. Media is the most strong organ of correspondence which can keep the

general public very much educated about infringement of law and court

procedures on significant issue to uncover the breaks of law at whatever point and

any place that happens and to guarantee reasonable and only treatment to all. We

all have seen how media openings have made even the strong and amazing

characters remain under the steady gaze of the rule that everyone must follow and

public mindfulness made by the media has frequently guaranteed just and

reasonable treatment to searchers of equity who maybe couldn't as expected

ventilate their complaints had there been no proper help from the media.

It has involved worry that of late, media has gotten proactive in zeroing in on

episodes covering various perspectives particularly the wrongdoing by generously

remarking on the job of police causing examination, the advancement of

examination, pinpointing the culprit of the wrongdoing, its alleged partners,

intention of wrongdoing and so on even before examination is finished and

applicable realities are discovered. Indeed, even on private existence of many,

media frequently openly remarks when such test in private life was inappropriate

and as a rule prior to finding out the establishment for such remark consequently

violating the editorial morals for keeping up protection and respect of the people

being remarked upon. Aarushi murder case is a glaring illustration of media's

exaggerating and unscrupulous practice. Such activity of media frequently

instigates the overall population to trust in the complicity of the individual

arraigned by the media in this manner squeezing the course of reasonable

examination by the police. Advantage of assumption of honesty to which a

denounced is qualified for is outrightly disposed of by the media in introducing

realities, frequently twisted and unconfirmed and gave precision highlighting the

inclusion of the individual prosecuted in the commission of wrongdoing.

It is a typical encounter that a paper or a channel regularly gets one instance of

wrongdoing as an uncommon subject of its decision and overwhelmingly

continues giving an account of such episode on an everyday reason for quite a

while, remarking with no limitation on assumed proof of the wrongdoing without

finding out the real network, with such an excess of conviction that overall

population begin accepting that the wrongdoing was charged by the individual

prosecuted by the media..

Preliminary by Media is talked about by social equality activists,constitutional

lawyers,judges,and scholastics practically ordinarily in ongoing times.With the

appearing of the TV and link channels measure of exposure which any

wrongdoing or suspect or charged gets in the media has arrived at disturbing

extents.

Preliminary by Media is an expression used to portray the effect of TV and paper

inclusion on an individual's standing by making a far and wide view of blame

paying little mind to any decision in a courtroom. There is no overall set of laws

where the media is given the power to attempt a case. This slang is utilized for

those prominent cases wherein the writers present a pre chosen image of a blamed

which can eventually influence the preliminary and the judgment.

During high exposure legal disputes, the media is regularly blamed for inciting an

air of public insanity likened to a lynch crowd which makes a reasonable

preliminary almost outlandish as well as implies that paying little heed to the

consequence of the preliminary the charged won't carry on with the remainder of

their existence without extreme public examination. The counter-contention is that

the crowd mindset exists autonomously of the media which simply voices the

sentiments which the public as of now has. There are various reasons why the

media consideration is especially extreme encompassing a legitimate case: the first

is that the actual wrongdoing is somehow or another electrifying, by being awful

or including kids; the second is that it includes a big name either as casualty or

denounced.

In India, preliminary by media has accepted critical extents. Some renowned

criminal cases that would have gone unpunished however for the mediation of

media are Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case

and Bijal Joshi assault case. The media anyway attracted fire the detailing of

homicide of Aarushi Talwar, when it appropriated the court and revealed that her

own dad Dr. Rajesh Talwar, and conceivably her mom Nupur Talwar were

engaged with her homicide, hence resuscitating recollections of JonBenet Ramsey

murder, which was hauntingly comparative. The CBI later announced that Rajesh

was not the executioner. Between September 2004 and March 2005, the media -

print, sound and visual all expounded on His Holiness Sri Jayendra Saraswathi

Swamigal, a Hindu strict pioneer, recommending his blame in a homicide case, yet

the High Courts of Madras and Andhra Pradesh and the Supreme Court of India

over and again found that there was no material proof to see him as blameworthy

and descended intensely on the media and the Government of Tamil Nadu for

abuse of government apparatus.

In India, the privilege to a reasonable preliminary is cherished essentially in

Article 21 of the Constitution of India .Article 21 of the Indian Consttution has

enlarged its degree and limit and has included option to reasonable preliminary as
a principal right . Assurance of a reasonable preliminary is the primary basic of the

regulation of justice. Free and reasonable preliminary has been supposed to be the

sine qua non of Article 21.

In Subhash Chander Vs. S.M.Aggarwal the Delhi High Court expressed that quite

possibly the most important privileges of our residents is to get a reasonable and

fair-minded preliminary liberated from a climate of bias. This correct makes it

compulsory upon the State not to deny any individual of his life or individual

freedom besides as indicated by the methods set up by law. Whenever charged

reserve an option to a reasonable preliminary then it essentially follows that they

should reserve an option to be attempted in an air liberated from bias or, more than

likely the preliminary might be vitiated on this ground alone."

The privilege to a reasonable preliminary along these lines, is at the core of the

Indian criminal equity framework. It incorporates a few different rights including

the option to be assumed blameless until demonstrated blameworthy, the privilege

not to be constrained to be an observer against oneself, the privilege to a public

preliminary, the privilege to lawful portrayal, the privilege to fast preliminary, the

option to be available during preliminary and look at witnesses, and so on On

account of Zahira Habibullah Sheik v. Territory of Gujarat the Supreme Court

clarified that a "reasonable preliminary clearly would mean a preliminary under

the steady gaze of a fair-minded Judge, a reasonable examiner and environment of

legal quiet. Reasonable preliminary methods a preliminary wherein inclination or

bias possibly in support of the charged, the observers, or the reason which is being

attempted is dispensed with."

Subsequently while the media has been ensured the opportunity to tons of public

interest including wrongdoing inclusion and the court procedures, a charged also is

ensured a reasonable preliminary under Article 21 of the Constitution. There have

been various examples in which media has been blamed for directing the

preliminary of the denounced and passing the 'decision' even under the watchful

eye of the court disregards its judgment by venturing its opportunity.

Objectives of Study

The main object of study is to analyse the recent trend of covering the criminal

and judicial proceedings by the media and its effect upon fair trial of an accused.

The role of the judiciary in this respect is also explored.

Research Methodology

The method used for this research is the doctrinal method. Primary sources of the

material are : Constitution of India,1950 alongwith a number of Statutes; while

secondary sources are the Books, Journals, Articles and Websites. The mode of

citation used is uniform and continuous.

Chapterisation

The first chapter deals with the scope of freedom guaranteed to the media under

Article 19(a) of the Constitution of India.

The second chapter deals with the Limitations imposed upon the media’s freedom

by the Constitution of India and by the different Statutes and otherwise.

The Impact of Mass Media on fair trial is discussed in chapter third.

The fourth chapter deals with the “Judicial Activism of Media” which emphasizes

the modern trend to the media in reporting the crime.

The fifth chapter deals with the “judicial response” on the extent of media’s

freedom
 SCOPE OF FREEDOM

Article 19 provides Protection of certain rights regarding freedom of speech

etc. Clause 1(a) says that all citizens shall have the right to freedom of

speech and expression The preamble to the constitution of India resolves to

secure for the citizens of India, liberty of thought, expression and

belief2.Article 19(1)(a) of the constitution from which the media derives its

rights guarantees to every citizen of India, the freedom of speech and

expression. It is the fundamental right of the citizen of India3.Clause 2

provides the exception to the right guaranteed under Article 19(1)(a) which

says that nothing in sub clause (a) of clause ( 1 ) shall affect the operation of

any existing law, or prevent the State from making any law, in so far as such

law imposes reasonable restrictions on the exercise of the right conferred by

the said sub clause in the interests of the sovereignty and integrity of India,

the security of the State, friendly relations with foreign States, public order,

decency or morality or in relation to contempt of court, defamation or

incitement to an offence

2
Constitution of India,Preamble.
3
Fundamental rights under the constitution of India (Part III of the Constitution)are those
basic rights that are recognized and guaranteed as the natural rights inherent in the status
of a citizen.These rights cannot be infringed or taken away by the governmental action or
statute except to the extent permitted by the reasonable restrictions enumerated in cluse 2
of Article 19.
The media derives its rights from the right to freedom of speech and

expression available to the citizen.Thus media has the same rights that is to

write, publish, circulate or broadcast. In a case that arose in pre-

independence India, the Privy Council held that the freedom of the journalist

is an ordinary part of the freedom of the subject ant to whatever lengths the

subject in general may go, so also may the journalist, apart from the statute

law, his privilege is no other and no higher……No privilege attaches to his

positions.4

The framework for analyzing media rights remains much the same in post-

independence India. In MSM Sharma vs. Krishna Sinha5,the Supreme Court

observed “a non-citizen running a newspaper is not entitled to the

fundamental right to freedom of speech and expression and,therefore

cannot claim,as his fundamental right,the benefit of the liberty of the

press.Further,being only a right flowing from the freedom of speech and

expression,the liberty of the prees in India stands on no higher footing than

the freedom of speech and expression of the citizen and that no privilege

attaches to the press as such,that is to say,as distinct from the freedom of the

citizen.”

4
Channing Arnold vs Emoeror,AIR 1914 PC 116
5
AIR 1959 SC 395
Thus media enjoys no special immunity or elevated status compared to the

citizen and is subject to the general laws of the land,including those relating

to taxation.However in post-independence India both the citizen and citizen-

owned media enjoy a constitutional guarantee that was hitherto absent.

Article 19(1) (a) of Indian Constitution says that all citizens have the right to

freedom of speech and expression.Freedom of speech and expression is the

most basic of all freedoms granted to the citizens of India.In Romesh Thaper

vs .State of Madras6, J Patanjali Shastri said that freedom of speech and

press lay at the foundation of a democratic society, for without free political

discussions, no public education is possible, which is so important for the

proper functioning of the govt. Freedom of Speech and expression means the

right to express one's own convictions and opinions freely by words of

mouth, writing, printing, pictures or any other mode. It thus includes the

expression of one's idea through any communicable medium or visible

representation, such as gesture, signs, and the like. Freedom of speech would

amount to nothing if it were not possible to propagate the ideas. Thus, the

freedom of publication and press is also covered under freedom of speech.

Free propagation of ideas is the necessary objective and this may be done on

the platform or through the press. This propagation of ideas is secured by

6 AIR 1950 SC 124

freedom of circulation. Liberty of circulation is essential to that freedom as

the liberty of publication. Indeed, without circulation the publication would

be of little value. The freedom of speech and expression includes liberty to

propagate not one's views only. It also includes the right to propagate or

publish the views of other people; otherwise this freedom would not include

the freedom of press.

Freedom of expression has four broad special purposes to serve:

1) It helps an individual to attain self-fulfillment.

2) It assists in the discovery of truth.

3) It strengthens the capacity of an individual in participating in

decision-making.

4) It provides a mechanism by which it would be possible to

establish a reasonable balance between stability and social change.

5) All members of society would be able to form their own beliefs

and communicate them freely to others.

In sum, the fundamental principle involved here is the people's right to

know. Freedom of speech and expression should, therefore, receive generous

support from all those who believe in the participation of people in the
administration. It is on account of this special interest which society has in

the freedom of speech and expression that the approach of the Government

should be more cautious while levying taxes on matters of concerning

newspaper industry than while levying taxes on other matters7.

In Prabhu Dutt vs. Union of India8 the Supreme Court has held that the

right to know news and information regarding administration of the

government is included in the freedom of press. But this right is not absolute

and restrictions can be imposed on it in the interest of society and the

individual from which the press obtains information. In this case the court

directed the Superintendent of the Tihar jail to permit the chief Reporter of

the Hindustan Times Newspaper to interview, Ranga and Billa, the two

death sentence convicts, under article 19(1)(a) as they were willing to be

interviewed. The jail authorities had refused the permission to the newspaper

representative to interview the convicts

Explaining the scope of freedom of speech and expression the Supreme

Court in Life Insurance Corporation of India vs. Manubhai D. Shah9 has said

that the words "freedom of speech and expression" must be broadly

constructed to include the freedom to circulate one's views by words of

7
Indian Express Newspaper vs. Union of India (1985)1SCC 641
8
AIR 1982 SC 6
9
AIR 1993 SCC 171
mouth or in writing or through audiovisual instrumentalities. It therefore

includes the right to propagate one's views through the print media or

through any other communication channel e.g. the radio and the television.

Every citizen of this country therefore has the right to air his or their views

through the printing and or the electronic media subject of course to

permissible restrictions imposed under Article 19(2)of the Constitution.

Freedom to air one's view is the lifeline of any democratic institution and

any attempt to stifle, suffocate or gag this right would sound a death knell to

democracy and would help usher in autocracy or dictatorship. The modern

communication mediums advance public interest by informing the public of

the events and development that have taken place and thereby educating the

voters, a role considered significant for the vibrant functioning of a

democracy. Therefore, in any setup more so in a democratic setup like ours,

dissemination of news and views for popular consumption is a must and any

attempt to deny the same must be frowned upon unless it falls within the

mischief of Article 19(2) of the Constitution.

The various communication channels are great purveyors of news and views

and make considerable impact on the minds of readers and viewers and our

known to mould public opinion on vitals issues of national importance. The

freedom of speech and expression includes freedom of circulation and

propagation of ideas and therefore the right extends to the citizen to use the

media to answer the criticism leveled against the views propagated by him.

Every free citizen has undoubted right to lay what sentiments he pleases.

This freedom must, however, be exercised with circumspection and care

must be taken not to trench on the rights of other citizens or to jeopardise

public interest.

Right to criticize:-

Freedom of speech and expression covers the right to criticize government,

the requisite of a healthy democracy. The Draft constitution proposed that

laws penalizing sedition would be an exception to free speech. the word

‘sedition’, defined in draft Article 13(2) as ‘exciting or attempting to excite

in others certain bad feelings towards the government and not in exciting or

attempting to excite mutiny or rebellion or any sort of actual disturbances,

great or small’, was deleted from Article 13(2) of the draft

Constitution,(eventually passed as Article 19(2).In Romesh Thappar vs.

State of Madras10,the Supreme Court noted that the deletion made it clear

that the authors of the Constitution intended that criticism of the government

10
AIR 1950 SC 124
was not to be regarded as a ground for restricting the freedom of speech or

expression.

Kedar Nath Singh vs. State of Bihar11 arose out of a constitutional Challenge

to section 124-A and 505 of Indian Penal Code,1860 which penalize

attempts to excite disaffection towards the government by words or in

writing and publications which may disturb public tranquility. The Supreme

Court dismissed the challenge but clarified that criticism of public measures

or comment on government action, however strongly worded, would be

within reasonable limits and would be consistent with the fundamental right

of freedom of speech and expression.

Government has no monopoly on electronic media: The Supreme Court in

Secretary,Ministry of Information and Broadcasting vs. Cricket Association

of Bengal12 has widened the scope and extent of the right to freedom of

speech and expression and held that the government has no monopoly on

electronic media and a citizen has under Art. 19(1)(a) a right to telecast and

broadcast to the viewers/listeners through electronic media television and

radio any important event. It has been held that a monopoly over

broadcasting whether by Government or anybody else, was inconsistent with

11
AIR 1962 SC 955
12
(1995)2 SCC 161
free speech right. The government can impose restrictions on such a right

only on grounds specified in clause (2) of Art. 19 and not on any other

ground. The court directed the Central Government to take immediate steps

for setting up of an autonomous public authority to control use of airwaves,

which would free the Doodarshan and Akashvani from the control of the

Government and ensure in which the freedom of speech and expression

could be meaningfully and effectively enjoyed by the citizens. A citizen has

fundamental right to use the best means of imparting and receiving

communication and as such have an access to telecasting for the purpose.

In a significant judgement in Tata Press Ltd vs. Mahanagar Telephone

Nigam.Ltd13,a three judges bench has held that commercial speech

(advertisement)is a part of the freedom of speech and expression granted

under Art 19(1) (a) of the Constitution. It can only be restricted on the

grounds specified in clause (2) of Art 19.The court however, made it clear

that the commercial advertisements which are deceptive, unfair, misleading

and untruthful could be regulated by the Government.

Right to Broadcast

13
AIR 1995 SC 2438
The concept of speech and expression has evolved with the progress of

technology and encompasses all available means of expression and

communication.This would include the electronic and the broadcast media.

In Odyssey Communications(P)Ltd vs. Lokvidayan Sanghatana14,the

Supreme Court held that the right of a citizen to exihibit films on the state

channel,Doordarshan is part of the fundamental right guaranteed under

Article 19(1)(a).The court held that this right was similar to the right of a

citizen to publish his views through any other media such as

newspapers,magazines,advertisements, hoardings and so on .In this case the

petitioner challenged the exihibition on Doordarshan of a serial titled ‘Honi

Anhoni’ on the ground that it encouraged superstition and blind faith

amongst viewers.The petition was dismissed as the petitioner failed to show

evidence of prejudice to the public.

Similarly in many cases it was held that broadcasting is a means of

communication and a medium of speech and expression within the

framework of Article 19(1)(a)

FREEDOMS NOT ABSOLUTE – SUBJECT TO REASONABLE

RESTRICTIONS

14
(1988)3 SCC 410
Reasonable restriction means intelligent care and discussion that the

restriction is not beyond what is required for public interest. It should not be

arbitrary and excessive. Further, the restriction can only be imposed by law

and not by executive or departmental decision.

Test of reasonable restrictions -Spanning several cases, SC has laid down

the following guidelines:

1. It is the courts and not the legislature that will decide whether a law is

reasonable or not.

2. Reasonable means that the law is not arbitrary and the restriction is

not beyond what is required in public interest. The time and duration

of the restriction cannot be unlimited.

3. There is no fixed standard for reasonableness. Each case must be

decided on its own merits.

4. The restriction must be reasonable from substantive as well as

procedural stand point.

5. Restrictions imposed due to implementation of Directive Principles

may deemed to be reasonable.

 6. The test of reasonability must be objective in the sense that it does not

matter what a Judge or Court thinks what is reasonable but what a

normal reasonable person would think.

7. The restriction must have a relation to the object that is sought

through the law and must not be excessive.

8. It is the reasonableness of the restriction that a count has to determine

and not the reasonableness of the law itself.

9. Restriction may amount to prohibition.

It means that the court is concerned as to whether the restrictions imposed on

citizen’s rights are reasonable.It has been held that the freedoms as

guaranteed under the Constitution should be allowed to be enjoyed by the

citizens to the fullest possible extent without putting shackles of avoidable

cobweb of rules and regulations, putting check and restrictions, in the

enjoyment of such freedoms.15

But, individual liberty cannot overshadow the ideals of social and economic

justice. The Supreme Court in Javed vs. State of Haryana observed:the test

of reasonableness is not a wholly subjective test and its contours are fairly

15
B.P.Sharma vs. Union of India,JT 2003(7) SC 159
indicated by the Constitution. The requirement of reasonableness runs like a

golden thread through the entire fabric of fundamental rights. The lofty

ideals of social and economic justice, the advancement of the nation as a

whole and the philosophy of distributive justice-economic, social and

political-cannot be given a go-by in the name of undue stress on

fundamental rights and individual liberty.

LIMITATIONS

The Preamble to the Constitution of India guarantees to the citizens of India

the fundamental freedoms. These fundamental freedoms are regarded as a

basic or inherent freedom of the citizens. But this freedoms are not absolute.

Absolute individual rights cannot be guaranteed by any modern state. An

organized society is the precondition of civil liberties. There cannot be any

right which is injurious to the community as a whole. If people were given

complete and absolute liberty without any social control the result would be

ruin16.Liberty has got to be limited in order to be affectively possessed. For

liberty of one must not offend the liberty of others. Patanjali Shastri, J. in

A.K. Gopalan’s case17,observed,” man as a rational being desires to do many

things, but in a civil society his desires have to be controlled, regulated and

reconciled with the exercise of similar desires by other individual”. The

guarantee of each of the rights is ,therefore, restricted by the constitution

itself by conferring upon the state a power to impose by law reasonable

restrictions as may be necessary in the larger interest of community. The

restriction on this freedom is provided in clause 2 of Article 19 of the

Constitution.

The restriction which may be imposed under Article 19(2) must be

reasonable restriction.The restriction cannot be arbitrary.Hence a restriction

to be constitutionally valid must satisfy the following two tests:-

1- The restriction must be for the purposes mentioned in clauses 2 to 6 of

Article 19

16
Wills-Constitutional Law and the United States,477
17
A.K.Gopalan vs. State of Madras,AIR 1951 SC 21
 2- The restriction must be reasonable restriction

Limitations under the Indian Constitution

A) Article 129 and 215

Article 129 makes the Supreme Court a ‘court of record’ and confers all the

powers of such court including the power to punish for its contempt.A court

of record is a court whose records are admitted to be of evidentiary value

and they are not to be questioned when they are produced before the

court.The power to punish for contempt of court has been expressly

conferred on the supreme court by our constitution.This extraordinary

power must be sparingly exercised only where the public interest demands.18

Article 215 provides that “every High Court shall be a court of record and

shall have all the powers of such court including the power to punish for

contempt for itself.” The scope and nature of the power of High Court under

Article is similar to the powers of the Supreme Court under Article 129.

‘Contempt of Court law’ deals with non-interference with the

“administration of justice” and that is how the “due course of justice” that is

18
(1991)4 SCC 406
required for a fair trial, can require imposition of limitations on the freedom

of speech and expression.

However, any prejudicial publication before such stage does not come

within the purview of the power to punish for contempt. It must be reiterated

that even before the case comes to the court, it is possible that substantial

injustice has been done to the accused by the publication. Some clarification

is required as to what the expression “pending” really means. On this point,

the Supreme Court had ruled in A.K. Gopalan v. Noordeen19, that the filing

of an FIR cannot be treated as a starting point of criminal proceedings and

that any publication made at that stage will not be deemed to be interfering

with or obstructing the course of justice.

It was ruled that criminal proceedings begin at the point of arrest. In that

case, a person lost his life in an incident and first information report was

lodged on the same day. About a week later, Mr. A.K. Gopalan (appellant)

made a statement and three days later, the respondent and his brother were

arrested and remanded to police custody. The statement was published in a

newspaper after the arrest. The respondent moved the High Court for

contempt against the appellant, editor, printer and publisher of newspaper.

The High Court held them all guilty of contempt of Court as the statement
19
(1969) 2 SCC 734.
on publications was after the filing of the first information report. The

Supreme Court allowed the appeal of Mr. A.K. Gopalan but dismissed the

appeal of the editor.

The Apex Court in E.M.S. Namboodripad vs Nambiar case 20 held that apart

from the power to proceed in contempt under Contempt of Courts Act, High

Courts and Supreme Court being superior courts of record have power to

proceed for contempt of such Courts. Article (19) (1) (a) and 19 (2) are,

therefore to be read with Article 129 and 215 of the Constitution.

In Delhi Judicial Service Assn. vs. State of Gujrat21,it has been held that

under Article 129 the Supreme Court has power to punish a person for the

contempt of itself as well as of its subordinate courts.The expression

“including” extends and widens the scope of power.The plain language of

Article 129 clearly indicates that the Supreme Court as a Court of Record

has power to punish for contempt of itself and also something else which

would fall within the inherent jurisdiction of the court of record. This

inherent power is necessary to safeguard and protect the subordinate

judiciary which forms the very back bone of the administration of justice. In

this case the court had sent five police officers to jail as they were found

20
1970 (2) SCC 325
21
(1991)4 SCC 406
guilty of criminal contempt for harassing and handcuffing the Chief Judicial

Magistrate of town Nadiad in the State of Gujarat.

In Mohd.Aslam vs. Union Of India22 the Supreme Court held that the Chief

Minister of Uttar Pradesh Mr.Kalyan Singh was guilty of contempt of court

for violating the order of the court not to allow any permanent structure on

the disputed land.

In re Vinoy Chandra Mishra23 the court has held that the power of court

under Article 129 and 142 cannot be limited by any statute,viz.the Contempt

of Courts Act,1971.The jurisdiction of Supreme Court under Article 129 is

independent of statutory law.Neither the Contempt of Courts Act nor

Advocate Act can restrict the said jurisdiction.The court has a power to

cancel or suspend the license of an advocate for committing criminal

contempt of court.The power cannot be restricted on the ground of Article

19(1)(a).The freedom of speech and expression cannot be used for

committing Contempt of Court.This right is subject to the law of Contempt

as well as provisions of the constitution.

22
(1994)6 SCC 442
23
(1995)2 SCC 584
In Supreme Court Bar Association vs. Union Of India24,a five-Judge Bench

of the Supreme Court has overruled its three-Judge Bench Judgement in

Re:Vinoy Chandra Mishra and held that the power of the Supreme Court

under Article 129 to punish for Contempt is though quite wide yet limited

and cannot extend to include the power to determine whether an advocate is

also guilty of “professional misconduct” in a summary manner by passing

the procedure prescribed under the Advocate Act,the power to do complete

justice under Art-142 is a corrective power which gives preference to equity

over law but it cannot be used to deprive a professional lawyer of the due

process contained in the Advocates Act 1961 by suspending his license to

practice in a summary manner while dealing with a case of contempt of

court.

The court has rightly asserted that its power under Article 129 of the

Constitution to make public servants aware of their duties and perform it in a

responsible manner and also warned them that they would be held

accountable for administrative inaction.

24
AIR 1998 SC 1895
It is to be noted here that apart from reasonable restrictions incorporated in

Article 19 (2) of the Constitution there is indirect limitation of fundamental

rights being tempered by fundamental duties25.

STATUTORY LIMITATIONS

A number of statutes in India restrict, or empower or require the court to

restrict, admission to certain proceedings before the court or publication of

those proceedings. A few of such specific statutory prohibitions are listed

below:

A) ARTICLE 19(2)

Our Constitution does not separately refer to the freedom of the press or of

the electronic media in Part III but these rights are treated by the law as part

of the ‘Freedom of speech and expression’ guaranteed by Article 19 (1)(a) of

the Constitution of India. The guarantee is subject to ‘reasonable

restrictions’ which can be made by legislation to the extent permitted by

Article 19(2). The Article reads thus:

“Article 19(1): All citizens shall have the right

(a) to freedom of speech and expression

25
(Part IV A – Article 51 A ) inserted by 42nd Constitution Amendment Act 1976.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any

existing law, or prevent the State from making any law, in so far as such law

imposes reasonable restrictions on the exercise of the right conferred by the

said sub-clause, in the interest of the sovereignty and integrity of India, the

security of the State, friendly relations with foreign States, public order,

decency or morality, or in relation to contempt of court, defamation or

incitement to an offence”.

B) Contempt of Courts Act, 1971

The Contempt of Courts Act defines contempt under two categories namely,

civil contempt and criminal contempt. Civil contempt is defined under

Section 2(b) of the Act. The definition of criminal contempt under Section

2(c) means publication whether by words spoken or written or even by signs

or by visible representations which scandalises or tends to scandalise, or

lowers or tends to lower the authority of any court or prejudices or interferes

or tends to interfere with the due course of any judicial proceeding or

interferes or tends to interfere with or obstructs or tends to obstruct the

administration of justice in any other manner.

Section 2(c) seeks to protect (i) authority of the Court, (ii) due course of

judicial proceeding, and (iii) the larger issue of administration of justice.

Any publication, which scandalises or tends to interfere or interferes or tends

to obstruct or obstructs authority of the court, due course of judicial

proceeding and administration of justice would come under the cover and

sweep of criminal contempt. The definition of criminal contempt although

very wide is tempered by Section 3.

Section 3 of Contempt of Courts Act 1971 defines what is pending

proceeding. It provides:-
“a judicial proceeding –

(a) is said to be pending –

(A) In the case of a civil proceeding, when it is instituted by the filing of

a plaint or otherwise,

(B) In the case of a criminal proceeding under the Code of Criminal

Procedure26, or any other law –

(i) where it relates to the commission of an offence, when the charge

sheet or challan is filed, or when the Court issues summons or

warrant, as the case may be, against the accused, and

(ii) in any other case, when the Court takes cognizance of the matter to

which the proceeding relates, and in the case of a civil or criminal

proceeding, shall be deemed to continue to be pending until it is

heard and finally decided, that is to say, in a case where an appeal or

revision is competent, until the appeal or revision is heard and finally

decided or , where no appeal or revision is preferred, until the period

of limitation prescribed for such appeal or revision has expired;

26
1898 (5 of 1898
(b) which has been heard and finally decided shall not be deemed to be

pending merely by reason of the fact that proceedings for the

execution of the decree, order or sentence passed therein are pending.”

Section 3 provides that although there has been publication or distribution of

publication which interferes or tends to interfere with, or obstructs the

course of justice in connection with any civil or criminal proceeding

(whether pending or not at the time of publication), such publication or

distribution would not constitute contempt of court unless the circumstances

and to the conditions specified in the section being fulfilled.

This section enumerates some of the exceptions to criminal contempt as

defined in Section 2(c)(ii) of the Act and this section read with sections 4

and 5 of Contempt of Courts Act enumerate some of the defences available

to a charge of contempt in relation to some publication or distribution of

such publications or reporting or commenting on judicial proceedings and

acts. Supreme Court in Suba Rao vs.Advocate General 27 held that from the

Explanation to sub-section (2) of Section 3, it is clear that there will be no

criminal liability for contempt of court unless the contemptuous publication

is made at the time when the proceeding is ‘pending’ before the court.

Furthermore, sub-section (2) of the Section 3 expressly confines its

27
A 1981 SC 755
operation to those categories of contempt which are referred to in subsection

(1). Sub-section (2) of the Section is not applicable to that category of

contempt which falls under sub-Clause (i) of Section 2 (c), or which is

otherwise of a kind different from those mentioned in Section 3(1).

Therefore, the question of ‘pendency’ becomes irrelevant when the contempt

is by way of scandalizing the courts or constitutes an attempt to lower their

authority.

The explanation to section 3(2) is important. It provides:-For the purpose of

this section, a ‘judicial proceeding’

a) Is said to be pending

A) In the case or a civil proceeding, when it is instituted by the filing of

a plaint or otherwise;

B) In case of criminal proceeding under the code of Criminal

Procedure, 1898, or any other law.

However Section 5 constitute an exception to law of contempt and gives

recognition to the basic principle enunciated by the British Court in R.vs.

Gray28 which is ‘Judges and courts are alike open to criticism, and if

28
(1900)2 Q.B. 36
reasonable argument or expostulation is offered against any judicial act as

contrary to law or public good, no court could or would treat that as

contempt of court.’ In Ambard vs .A.G. of Trinidad29 ,Lord Atkin described

the parameter of the same exception as ‘no more than the liberty of any

member of the public to criticize temperately and fairly but freely any

episode in the administration of justice.’ It is to be noted that the plea of ‘fair

comment’ on a judgment under section 5 will not be available if the

comment is made before the case is heard and finally decided.

In Perspective Publications vs. State of Maharashtra30 ,the Supreme Court

held that it is open to anyone to express fair, reasonable and legitimate

criticism of any act or conduct of a judge in his judicial capacity or even to

make a proper and fair comment on any decision given by him because

‘justice is not cloistered virtue and she must be allowed to suffer the scrutiny

and respectful, even though outspoken, comments of ordinary men.’

In Ram Dayal vs. State of UP31, popularly known as Umaria Pamphlet case

the Supreme Court indicating the parameter of fair criticism has held that if

the criticism is likely to interfere with due administration of justice or

undermine the confidence which the public rightly response in the courts of

29
1936 P.C. (141)
30
AIR 1971 SC 221, 230
31
AIR 1978 SC 921.)
law as court of justice, the criticism would cease to be fair reasonable

criticism as contemplated by section 5 but would scandalize courts and

substantially interfere with administration of justice.

Section 7 refers to proceedings of Court in chambers or in camera.In such

cases, there are several categories of prohibited publication namely

(a) where publication is contrary to the provisions of any Act for the

time being in force; or

(b) where the Court expressly injuncts the publication of all

information relating to the proceeding; or

(c) where publication of such proceeding or information is prohibited

on grounds of public policy; or

(d) the publication of any proceeding where the Court sits in Chamber

or in camera;or

(e) where publications are not permitted for reasons connected with

the public order and the security of the State; or

(f) where the information about such proceeding relates to secret

process; or
 (g) discovery or invention which is the subject matter of such

proceeding.

Sub Section (2) of Section 7 provides that a person shall not be guilty of

contempt of court for publishing the text or a fair and accurate summary of

an order made by a Court sitting in Chamber or in camera, unless the Court

has prohibited such publication on grounds of public policy or reasons

connected with public order or security of the State or on the ground that the

information relates to the secret process, discovery or invention or in

exercise of any power vested in it.

In Naresh vs. State of Maharashtra32, the Supreme Court holds that, where

the ends of justice would be defeated by a public trial, a court has an

inherent jurisdiction to hold the trial in camera.Further, the Supreme Court

has held that the power to hold the trial in camera must include the power to

hold a part of the trial in camera or to prohibit excessive publication of the

proceedings held at such trial.

Besides Contempt of Court Act other Statutes are as follows:-

1) Section 228A of the Indian Penal Code, inserted by the Criminal Law

Amendment Act, 1983 which relates to publication of the name of a

32
AIR 1967 SC 1.10.11.
 victim of certain sexual offences, or of any matter in relation to any

proceeding before a court with respect to such offence, without the

permission of the court.

2) Section 53 of the Indian Divorce Act, 1869, which provides that the

whole or any part of the proceedings under the Act may be heard

behind closed doors in certain circumstance. This Act, contrary to

what its title would seem to suggest does not contain the entire Indian

law of divorce, but is confined to matrimonial causes between persons

professing the Christian religion.

3) Section 14 of the Official Secrets Act, 1923 which provides that in

addition to such powers as the courts may in this behalf have under

any other law, a court holding a trial under the Act may exclude the

public from proceedings under the Act, by an order made on the

ground that the publication of any evidence given or any statement to

be made in the course of the proceedings would be prejudicial to the

safety of the State. But the sentence of the court must be passed in

public.
 4) Section 33 of the Special Marriage Act, 1954 which requires that

proceeding under the Act shall be conducted in camera, if either party

desires or if the District Court so thinks fit to direct.

5) Section 43 of the Parsi Marriage and Divorce Act, 1936, which

provides that in every suit, preferred under the Act, the case shall be

tried with in closed doors, should such be the wish of either of the

parties.

6) Section 22 of the Hindu Marriage Act, 1955 provides:

“22 (1) A proceeding under this Act shall be conducted in camera if either

party so desires or if the court so thinks fit to do, and it shall not be lawful

for any person to print or publish any matter in relation to any such

proceeding except with the previous permission of the court.

“(2) If any person prints or publishes any matter in contravention of the

provisions contained in Sub- section (1) he shall be punishable with fine

which may extend to one thousand rupees”.

7) Section 36 of the Children Act, 1960 (Confined to Union Territories),

which prohibits the publication in any newspapers, magazine or news

sheet of the report of any enquiry regarding a child under the Act in a
 manner which can lead to identification of the child, or the publication

of any picture of the child, without the permission of the authority

holding such enquiry.

Certain acts like publications in the media at the pre-trial stage, can affect

the rights of the accused for a fair trial. Such publications may relate to

previous convictions of the accused, or about his general character or about

his alleged confessions to the police etc.

In Saibal v.B.K. Sen33 SC said that “It would be mischievous for a

newspaper to systematically conduct an independent investigation into a

crime for which a man has been arrested and to publish the results of the

investigation. This is because, trial by newspapers, when a trial by one of the

regular tribunal is going on, must be prevented.The basis for this view is that

such action on the part of the newspaper tends to interfere with the course of

justice”.

Press Council Of India Act

The Press Council of India, has given guidelines on various issues relating to

functioning of print media of the country. The print media has an obligation

to abide by the ethics of journalism formulated by the Council and to follow

33
AIR 1961 SC 633
the guidelines indicated by it in different spheres of media reporting by the

Press. Although, Press Council of India Act as it stands now does not

contain any provision to enforce compliance of the ethics and guidelines

formulated by the Council presumably because it was expected by the

Parliament that mandates and ethics of the Council being framed by the peer

body of the print media and high representatives of people constituting the

Council will be followed in letter and spirit.

Guidelines on Media Trial

i) An accused is entitled to the privilege of presumption of being

innocent till guilt is pronounced by the Court.

ii) The media reports should not induce the general public to believe in

the complicity of the person indicted as such kind of action brings

undue pressure on the course of fair investigation by the police.

iii) Publishing information based on gossip about the line of

investigation by the official agencies on the crime committed gives

such publicity to the incident that may facilitate the person who

indeed committed the crime to move to safer place.

iv)It is not always advisable to vigorously report crime related issues on

a day to day basis nor to comment on supposed evidence of the crime

without ascertaining the factual matrix.

v) While media’s reporting at the investigation stage in a criminal case

may ensure a speedy and fair investigation, disclosure of confidential

information may also hamper or prejudice investigation. There cannot

therefore be an unrestricted access to all the details of the

investigation.

vi) Victim, Witnesses, Suspects and accused should not be given

excessive publicity as its amounts to invasion of their privacy rights.

vii) Identification of witnesses by the newspapers/media endanger them

to come under pressure from both, the accused or his associates as

well as investigative agencies. Thus, media should not identify the

witnesses as they may turn hostile succumbing to the pressure.

viii) The suspect’s picture should not be shown as it may create a

problem during ‘identification parades’ conducted under the Code

of Criminal Procedure for identifying the accused.

 ix) The media is not expected to conduct its own parallel trial or foretell

the decision putting undue pressure on the judge, the jury or the

witnesses or prejudice a party to the proceedings.

x) The reporting on post trial/hearing often consists of reporting on

decision handed down. But when there is a time lag between the

conclusion of the proceedings and the decision, the comments on the

concluded proceedings, including discussion on evidence and/or

arguments, aimed at influencing the forthcoming decision must be

avoided.

xi) Media having reported an initial trial is advised to follow up the story

with publication of final outcome by the court, whenever applicable.

Guidelines on Sting Operations

i) A newspaper proposing to report a sting operation shall obtain a

certificate from the person who recorded or produced the same

certifying that the operation is genuine and bonafide.

ii) There must be concurrent record in writing of the various stages of the

sting operation.
 iii) Decision to report the sting operation should be taken by the editor

after satisfying himself of the public interest of the matter and

ensuring that report complies with all legal requirements.

iv) Sting operation published in print media should be scheduled with an

awareness of the likely reader in mind. Great care and sensitivity

should be exercised to avoid shocking or offending the reader.

Self-Regulatory Bodies

The media in India is mostly self regulated.Many countries have regulatories

bodies and laws to govern the behavior of media.Self regulation is

considered the best means to guarantee appropriate behavior for two major

reasons.First,self-regulation ensures that the media can continue to operate

independently.Second,self-regulation is a voluntary act that is not imposed

externally and hence,carries more credibility in the eyes of the public.Self

regulation applies not only to media groups and organizations but also to

individual journalists.It is therefore,of fundamental importance that media

practitioners nurture a strong ethical value system throughout their

careers.There are several self regulatory bodies in India which are managing

by Indian Broadcasting Federation(IBF).

Indian Broadcasting Federation

It established in 1999 is Indias premium apex organization of television

broadcasters.IBF promotes the interest of the Indian Television Industry and

working as a clearing of ideas for this rapidly growing industry.Its protect

and promoting the interest of its members and freedom of electronic media

in the worlds largest democracy.

News Broadcaster Association

The News Broadcaster Association (NBA) represents the private television

news and current affairs broadcasters. It is an organization funded entirely

by its members. The NBA presents a unified and credible voice before the

Government.

Broadcasting Content Complaints Council (BCCC)

The BCCC is an independent Council set up by the Indian Broadcasting

Foundation. The Council comprises of a thirteen member body consisting of

a Chairperson being a retired Judge of the Supreme Court or High Court and

12 other members. The composition of other members are Four non-

broadcaster members; Four members from any national level Statutory

Commissions and Four broadcaster members

BCCC would examine complaints about television programmes received

from the viewers or any other sources, including NGOs, RWAs, Ministry of

Information & Broadcasting etc. and ensures that the programmes are in

conformity with the Self Regulatory Content Guidelines.

 MASS MEDIA AND ITS IMPACT

“Where there is no publicity, there is no justice. Publicity is the very soul of

justice. It is the keenest spur to exertion and the surest of all guards against
improbity. It keeps the judge himself while trying under trial.”12

-Jeremy Bentham

The media in India is one of the freest in the world in terms of legal

constraints. Freedom of expression incorporated in the Constitution in

Article 19(1) remains an important facilitator for widespread engagement

within a democratic atmosphere. The first Prime Minister of independent

India Pandit Jawaharlal Nehru said that - "we would rather have a

completely free press with all the dangers involved in the wrong use of that

freedom than a suppressed or regulated press." To realize the vision of Mr.

Nehru, the media has been provided with many freedoms and immunities so

that this fourth pillar of democracy stands tall and strong. But that great man

could not foresee the complexities of the ‘administration of justice’ which

emerged with time. Though freedom of expression is not absolute, unlimited

or unfettered as giving an unrestricted freedom of the speech and expression,

would amount to uncontrolled license.

But despite the reasonable restriction which may be imposed on media on

certain grounds, media has now reincarnated itself into a 'public court' (Janta
Adalat) and which completely overlooks the vital gap between an accused

and a convict keeping at stake the golden principles of 'presumption of

innocence until proven guilty' and 'guilt beyond reasonable doubt'. Now,

what we observe nowadays is called media trial where the media itself does

a separate investigation, builds a public opinion against the accused even

before the court takes cognizance of the case. By this way, it prejudices the

public and sometimes even may be the judges and as a result the accused,

who should be assumed innocent, is presumed as a criminal leaving all his

rights and liberty unredressed. If excessive publicity in the media about a

suspect or an accused before trial prejudices a fair trial or results in

characterizing him as a person who had indeed committed the crime, it

amounts to undue interference with the "administration of justice", calling

for proceedings for contempt of court against the media. Unfortunately, rules

designed to regulate journalistic conduct are inadequate to prevent the

encroachment of civil rights.Thus the sensational news reporting is striking

at the core of fair trial concept. Media is increasingly swaying public opinion

to such an extent that an accused is held guilty even before the trial has

begun in a court of law. This is a dangerous trend.

Media and its Impact on Fair Trial

A rich tradition of independent journalism is behind us. In fact, all the big

scams were busted by the press. The journalist must be credited for

extracting that information which looked inaccessible for the top vigilance

teams of the country. That is how Bofors hit the headlines. That is how we

found out about numerous other scams with Adarsh housing society scam

being the latest to hit headlines. The media has served the nation immensely.

Increasing level of interest is now shown by the public in the cases which

are subjudice.The happenings of courtrooms are sought by their curiosity.

Some sections in the media appear to resent sub judice rule and complain

that courts during the course of a hearing tend to interpret the sub judice rule

quite strictly to prohibit any discussion of the issues before the court even if

they are engaging public attention. In their opinion such a restriction could

be applied more legitimately to situations where a jury of lay people is

involved. However, Indian courts have generally allowed the media to report

the proceedings as they occur in a given trial. In cases involving minors or

women as victims of sexual assault it rightly restrains the media.

Contemporary advances in the field of communication underline the

growing importance of the digital medium in the news reporting. It is not

only the large media establishments such as newspapers and television

channels who maintain constantly updated websites, but also millions of

individual users who post their comments and reports online. The internet

has indeed made it much easier to publish one’s views to a large audience.

The influential media agencies must promote the best practices for

newsgathering and emphasize the importance of maintaining ethical

standards for the coverage of judicial proceedings. It is submitted that it is

time for constituting a national level committee to chalk out broad guidelines

of conduct to be observed by media establishments. Self regulation of any

institution appears to have failed as an idea. Masquerading as responsible

journalism is one thing but living up to expectation of a high professional

conduct from the society is quite another.

Consequently the chances of fair trial are affected. Right to a fair trial is

absolute right of every individual within the territorial limits of India vide

articles 14 and 20, 21 and 22 of the Constitution. Needless to say right to a

fair trial is more important as it is an absolute right which flows from Article

21 of the constitution to be read with Article 14. Freedom of speech and

expression incorporated under Article 19 (l)(a) has been put under

'reasonable restriction' subject to Article 19 (2) and Section 2 (c) of the

Contempt of Court Act. One's life with dignity is always given a priority in

comparison to one's right to freedom of speech and expression. Media

should also ponder upon these facts. Fair trial is not purely private benefit
for an accused - the publics' confidence in the integrity of the justice system

is crucial.34 The right to a fair trial is at the heart of the Indian criminal

justice system. It encompasses several other rights including the right to be

presumed innocent until proven guilty, the right not to be compelled to be a

witness against oneself, the right to a public trial, the right to legal

representation, the right to speedy trial, the right to be present during trial

and examine witnesses, etc. In the case of Zahira Habibullah Sheikh v. State

of Gujarat35 the Supreme Court explained that a "fair trial obviously would

mean a trial before an impartial Judge, a fair prosecutor and atmosphere of

judicial calm. Fair trial means a trial in which bias or prejudice for or against

the accused, the witnesses, or the cause which is being tried is eliminated."

In Police Commr.,Delhi vs. Registrar Delhi High Court36 it was held that

assurance of a fair trial is the first imperative of the dispensation of justice.

In Kalyani Baskar vs. M.S.Sampoornam it was observed that right to fair

trial includes fair and proper opportunities allowed by law to prove

innocence of accused,adducing evidence in support of defence,is a valuable

right,denial of that right means denial of fair trial.

The media trial affects the right to fair trial as following:

34 Gisborne Herald Co. Ltd. V. Solicitor General, 1995 (3) NZLR 563 (CA)
35 Zahira Habibullah Sheikh v. State of Gujarat, [(2004) 4 SCC 158]
36
AIR 1997 SC 95
Pressure on Lawyers

The media trial puts pressure on the lawyers not to take up case of an

accused thus, forcing the accused to stand trial without any effective

defence. Such an attitude goes against the principles of natural justice. Every

person has a right to get himself represented by a lawyer of his choice and

put his point before a court of competent jurisdiction and no one has the

right to debar him from doing so. When eminent lawyer Ram Jethmalani

decided to defend Manu Sharma, prime accused in a Jessica Lall murder

case, he was subjected to public derision.

A senior editor of the television news channel CNN-IBN called the decision

to represent Sharma an attempt to “defend the indefensible”.37. Media went

hammer and tongs when Mr. Jethmalani took up the case and posed him as a

villain. It again went berserk when former Chief Justice of India K.G.

Balakrishnan opined that Ajmal Kasab, the only person to land in police

custody in the Mumbai terror attack case should be given legal aid and must

face trial. The learned judge felt that such a course of action to be in tune

with established democratic norms. 38The threats to lawyers and the murder

37
http://ibnlive.in.com/news/exclusive-jethmalani-flays-media/25393-3-single.html visited on 16.04.2011.
38
http://www.zeenews.com/mumbaiterror/story.aspx?aid=498251 visited on 17.04.2011.
of a lawyer Farhan Azmi in Mumbai for defending his clients before a court

of law is another example in this respect.

Pressure on Police Administration

Police comes under immense media pressure in high profile case and they in

order to save their reputation come up with some theory hastily cooked up39,

as it happened in Aarushi murder case40 which was constantly focused by

media. It cannot be forgotten that process of investigation is sacrosanct and

unnecessary meddling by media complicates the case. On the other hand, it

cannot be denied that at times timely intervention by media rescues a dying

cause. The role of media in Jessica Lall case has been much applauded.

Subconscious Effect on the Judge

Another worrying factor and one of the major cause of concern on ‘media

trial’ is prejudicing the judges presiding over a particular case. The

American view appears to be that jurors and judges are not liable to be

influenced by media publication, while the Anglo-Saxon view is that

judges, at any rate may still be subconsciously (though not consciously)

influenced and members of the public may think that judges are influenced

39
Such stories may sometimes be called as character assissenation
40
However the much maligned parents of the girl are now,being tried by the order of the court despite
C.B.Is assertion that not muchevidence is available against the Talwar couple
by such publications under such a situation. Cardozo, one of the renowned

judges of the American Supreme Court, referring to the “forces which enter

into the conclusions of Judges” observed that “the great tides and currents

which engulf the rest of men do not turn aside in their curse and pass the

Judges by41”.However, Lord Denning opined that judges will not be

influenced by the media publicity42 a view which was not accepted in the

House of Lords. Cardozo, one of the renowned judges of the American

Supreme Court, referring to the “forces which enter into the conclusions of

Judges” observed that “the great tides and currents which engulf the rest of

men do not turn aside in their curse and pass the Judges by”.43

The Additional Pressure on Jurors and Judges in High-Publicity Trials

The media create a series of unconscious pressures on a juror in a high-

profile trial. Jurors know that they are being watched by the world. They are

not only making a decision for themselves, but they are making a statement

for their family, co-workers, community, and society as a whole. This

elevates their verdict to a level beyond the evidence. In interviewing jurors

after the trial of Hollywood madam Heidi Fleiss, many jurors expressed how

41
Benjamin M. Cardozo, The Nature of Judicial Process, Eighth Indian Reprint, Universal Law Publishing
Pvt. Co. Ltd.,p.168.
42
Attorney General v BBC, 1981 AC 303 (CA), p.315.
43
Benjamin M. Cardozo, The Nature of Judicial Process, Eighth Indian Reprint, Universal Law Publishing
Pvt. Co. Ltd.,p.168.
they hoped that the police would use their resources more wisely than to

prosecute victimless crimes. It comes to the point in this particular case

where Dr. Golden has made thirty errors. So this man has not made errors on

previous autopsies . . . . But this just happened to be a case that came to the

court as a 'high-profile' case and the problems were brought to everyone's

attention. Thus the excessive interest shown by the media in a number of

cases is likely to affect the trial before a court of law.

Law Commission 200th Report

The media trial has been dealt at length in the 200th Report of the Law

Commission and is entitled Trial by Media: Free Speech vs. Fair Trial Under

Criminal Procedure (Amendments to the Contempt of Court Act, 1971). The

Report has made recommendations to address the damaging effect of

sensationalized news reports on the administration of justice. Under the

existing law44 the starting point of the pendency of the case is only from the

44
Section 3 of the Contempt of Courts Act, 1971 restricts the freedom of speech and expression which
includes freedom of the media, both print and electronic. The threshold for the same is “if any publication
interferes with or obstructs with or tends to obstruct the course of justice in connection with any civil or
criminal proceeding which actually pending.”

Furthermore, Section 3(1) of the Act incorporates the “innocent publication” rule which protects the
publication if the person who made –the publication had no reasonable grounds for believing that the
proceeding related to the subject-matter was pending at the time.

At present, Section 3(2) of the Act allows unrestricted freedom of publication, granting immunity from
contempt if there is no civil or criminal proceeding actually “pending” in a court at the time of publication.
The amendment proposed by the Law Commission suggests that the word “pending” requires clarification
stage where the court actually gets involved i.e. when a charge sheet or

‘challan’ is filed under Section 173 of The Code of Criminal

Procedure,1973.

The Commission has recommended prohibiting publication of anything that

is prejudicial towards the accused — a restriction that shall operate from the

time of arrest. It also reportedly recommends that the High Court be

empowered to direct postponement of publication or telecast in criminal

cases. The report noted that at present, under Section 3 (2) of the Contempt

of Court Act, such publications would be contempt only if a charge sheet

had been filed in a criminal case.

The Commission has further suggested that the starting point of a criminal

case should be from the time of arrest of an accused and not from the time of

filing of the charge sheet. In the perception of the Commission such an

amendment would prevent the media from prejudging or prejudicing the

case. Another controversial recommendation suggested was to empower the

High Court to direct a print or an electronic media to postpone publication or

telecast pertaining to a criminal case and to restrain the media from resorting

to such publication or telecast.

and it is suggested that under Section 3(1) of the Act the word “pending” should be substituted by the word
“active”.
The opinion of the Court45 may summarize as following:

i) Committal for contempt is not a matter of course. It is a matter of

discretion of the Court and such discretion must be exercised with caution.

The power must be exercised with circumspection and restraint and only

when it is necessary.

(ii) The publication to constitute contempt must be shown to be such that it

would substantially interfere with the due course of justice.

(iii) On the date on which the first appellant made his statement, it could not

be said that any proceedings in a criminal court were imminent merely

because a first information report has been lodged. The accused were not

arrested till after his statement is made and there was nothing to suggest

imminence of proceedings, and there was nothing to show that the first

appellant was instrumental in getting the statement published after the arrest.

(iv) The fundamental right to freedom of speech will be unduly restrained if

it is held that there should be no comment on a case even before an arrest

had been made. In fact, in cases of public scandals involving companies, it is

the duty of free press to comment on such topics and draw the attention of

the public.

45
A.K.Gopalan vs. Noordeen (1969)2 SCC 734
(v) As regards the editor, the proceedings in the criminal court were

imminent, because by the date the statement was published; the accused was

arrested, and remanded by the magistrate, which shows that proceedings in a

court were imminent. The possibility of the accused being released after

further investigation is there, but is remote. Even though the name of the

accused was not mentioned, it was indicated that the person who committed

murder was acting in pursuance of a conspiracy, and that would certainly put

the public against the accused. The dissenting judge justice Mitter held that

even the first appellant was guilty of contempt of court.

 JUDICIAL ACTIVISM OF MEDIA

The media has been recognised as the greatest influencing factors. The

power with them carries with it an obligation to act with responsibility and

creativity. But, there are symptoms of negativity in the media. In the context

of the judiciary, the positive performance may not highlighted, but failure,

howsoever insignificant it may be, is picked up, blown out of proportion and

publicised46.

The media, however, drew flak in the reporting of murder of Aarushi

Talwar, when it pre-empted the court and reported that her own father Dr.

Rajesh Talwar, and possibly her mother Nupur Talwar were involved in her

murder47, thus reviving memories of Jon Benet Ramsey murder, which was

hauntingly similar. CBI later declared that Rajesh was not the killer.

Between September 2004 and March 2005, the media print, audio and visual

all wrote about His Holiness Shri Jayendra Saraswathi Swamigal, a Hindu

religious leader, suggesting his guilt in a murder case, but the High Courts of

Madras and Andhra Pradesh and the Supreme Court of India repeatedly

found that there was no material evidence to find him guilty and came down

46
Justice R.C. Lahoti, Speech on Law Day, (2005) 2 SCC (Jour) 1 at p. 6.
47
However the much maligned parents of the girl are now,being tried by the order of the court despite
C.B.Is assertion that not muchevidence is available against the Talwar couple
heavily on the media and the Government of Tamil Nadu for misuse of

government machinery.

It has indeed become a disturbing feature that the accused persons, after their

remand by the Magistrate, are brazenly paraded before the press and

interviews are being allowed. In cases where there is a test identification

parade or the accused person is identified by a witness, the case of the

prosecution is vulnerable to attack on the ground of exposure of the accused

persons to public glare, weakening the impact of the identification. Further,

police custody is given by the court to the investigating authorities on the

premise that the accused is required for the purpose of investigation. This

custody is not to be misused by allowing the media to interview the accused

persons when they are in police custody under the orders of the court48

There is unnecessary sensationalisation in rape cases wherein the media try

to dig into the victim sexual history. There are rape shield statutes in the

United States which prohibit disclosure of information about a victim sexual

history during trial and victim rights statutes which enable rape victims to

claim certain rights in relation to privacy and claim heavy damages in case

of violation of such right. Though there are judicial guidelines on the matter

in India, there has to be a legislation modeled on the US pattern. And the

48
State v. Mohd. Afzal, 107 (2003) DLT 385 at p. 443, para 139
documents which tend to undermine the dignity of women and children

should be safeguarded from the media preying eyes49.

The journalists has a fundamental right to attend proceedings in a court and

the right to publish a faithful report of the proceedings witnessed and heard

in court.This right is available in respect of judicial and quasi judicial

tribunals.50

The right to report judicial proceedings stems from the necessity for

transparency. Justice must not only be done, it must be seen to be done.

Openness is a safeguard against judicial error and misconduct.

Publicity is the very soul of justice .It is keenest spur to exertion

And the surest of all guards against improbity. It keeps the judge

Himself while trying, under trial51

Publicity of proceedings serves another important purpose. It enhances

public knowledge and appreciation of the working of the law and the

administration of justice. There is also a therapeutic value to the public in

seeing criminal trials reach their logical conclusion.52

49
Lekshmi Vijayabalan, Refresher Course on Court; Media Relations in Advancing the Cause of
Justice, held between Feb. 5-27, 2005, Vol. 2, Newsletter of the National Judicial Academy,
December 2005 at p.60.
50
Saroj Iyer vs Maharashtra Medical (Council)of Indian Medicine,AIR 2002 Bom 97
51
Bentham quoted in Scott v Scott,1911 All ER 1,p.30
52
Kartar Singh v State of Punjab,(1994)3 SCC 569,para 269,p.684
Publicity of proceedings is not an absolute rule. The open justice system

must give way when there are higher considerations. For instance, the names

of rape victims53 or riot victims must be protected.Such persons may be

reluctant to complain if their identies are disclosed and trials publicized.It is

not only necessary to protect such persons from public humiliation and

embarrassment,but also necessary to ensure that the victim gives the best

available evidence which she may not be able to provide if she is in the

public gaze.Similarly family disputes warrant privacy,particularly to protect

children from unwarranted publicity.In Naresh Shridhar Mirajkar vs. State

of Maharashtra54,the Supreme court held that the court may restrict the

publicity of proceedings ‘in the interests of justice’.The court has the

inherent power under section 151 of the Civil Procedure Code,1908 to order

a trial to be held in camera ,but this power must be exercised with great

caution and only where the court is satisfied beyond doubt that the ends of

justice would be defeated if the case were to be tried in open court.

53
Section-228A of Indian Penal code which relates to publication of the name of a victim of certain sexual
offences, or of any matter in relation to any proceeding before a court with respect to such offence, without
the permission of the court.

54
AIR 1967 SC 1.
Prominent cases on Media Trial

Trial of Roscoe Arbuckle

One of the first celebrities in the 20th century to be tried by media

was Roscoe 'Fatty' Arbuckle who was acquitted by the courts but

nevertheless lost his career and reputation due to the media coverage.

In 1921 Arbuckle threw a party during which Bit player Virginia

Rappe became ill and died days later. Roscoe ‘Fatty’ Arbuckle was charged

with murder. Immediately the press was all over the story and

sensationalized that Arbuckle had caused the rupture by crushing Rappe

while on top of her. Even more lurid accounts suggested that Fatty Arbuckle

had violated her Vagina using a champagne bottle. Two days later voluntary

and state mandated bans were imposed on Arbuckle’s movies. Rappe,

endured three widely publicized trials for murder. His films were

subsequently banned and he was publicly ostracized. Though he was

acquitted by a jury and received a written apology, the trial's scandal has

mostly overshadowed his legacy as a pioneering comedian. Though the ban

on his films was eventually lifted, Arbuckle only worked sparingly through

the 1920s. In 1932 he made a successful comeback, which he briefly

enjoyed before his death in 1933.

O. J. Simpson murder case

One of the most publicized criminal trial in American history has been the

case of People of the State of California v. Orenthal James Simpson55

popularly known as the O. J. Simpson murder case in which

former American football star and actor O. J. Simpson was tried for the

offence of murder of his ex-wife Nicole Brown Simpson and her

friend Ronald Goldman. Simpson was acquitted after a lengthy trial that

lasted over nine months.

The trial received extensive media coverage. The media coverage was itself

at times controversial; the issue of whether or not to allow any video

cameras into the courtroom was among the first issues Judge had to decide,

ultimately ruling that live camera coverage was warranted.This decision was

later criticized by other legal professionals. The Judge along with others

related to the case were said to have been influenced to some degree by the

media presence, and the publicity that came with it. The trial was covered in

2,237 news segments from 1994 through 1997.

On June 27, 1994, Time published a cover story "An American Tragedy"

with a mugshot image of O. J. Simpson on the cover. The image was darker

55 43 Cal.2D 553
than a typical magazine image, and the Time photo was darker than the

original, as shown on a Newsweek cover released at the same time. Time

itself was now the object of a media scandal, and it was found it had

employed photo manipulation to darken the photo, for the purpose of, as

commentators have claimed, making Simpson appear more "menacing." The

publication of the cover photo drew widespread criticism of racist

editorializing, and yellow journalism. Subsequently time publicly

apologized.

Chamberlain Murder Trial

Alice Lynne (Lindy) Chamberlain-Creighton was at the centre of one

of Australia's most publicised murder trials, in which she was convicted of

killing her baby daughter, Azaria. The conviction was later overturned.

When Azaria was two months old, Michael and Lindy Chamberlain took

their three children on a camping trip to Uluru, arriving on 16 August 1980.

On the night of 17 August, Chamberlain reported that the child had been

taken from her tent by a dingo. A massive search was organised, but all that

was found were remains of some of the bloody clothes, which confirmed the

death of baby Azaria. Her body has never been discovered.

Although the initial coronal inquiry supported the Chamberlains' account of

Azaria's disappearance, Lindy Chamberlain was later prosecuted for the

murder of her child on the basis of the finding of the baby's jumpsuit and of

tests that appeared to indicate the presence of blood found in the

Chamberlains' car. This forensic gathering convicted her of murder on 29

October 1982, and sentenced her to life imprisonment.

New evidence emerged on 2 February 1986 when a remaining item of

Azaria's clothing was found partially buried near Uluru in an isolated

location, adjacent to a dingo lair. This was the matinee jacket which the

police had maintained for years did not exist. Five days later, Chamberlain

was released.

This was trial by media and prejudice of the worst kind. Many Australians

simply took a dislike to her as a person and did not care whether she was

guilty or not - they just wanted her punished anyway, regardless of the truth.

Lindy Chamberlain was judged because of her religious beliefs (Seventh

Day Adventist) and because she apparently didn't behave according to some

perceptions of how a grieving mother should behave.

Cases on Media Trial in India

In, India, trial by media has assumed significant proportions in the last

decade. In some famous criminal cases, irrespective of the judicial verdict,

the way media covered them, apprehensions are raised about the role of

media in respect of crime coverage. Few of such cases are as following:-

Priyadarshini Mattoo Case56

Priyadarshini, a 23-year-old student of Delhi University, was raped and

brutally murdered, at her uncle’s residence in Delhi, by Santosh Kumar

Singh, the son of JP Singh, an IPS officer in 1996.

The trial court acquitted Santosh Singh.Delivering the judgment ,in 1999,

the Additional Sessions Judge. G.P. Thareja said of Santosh, that though he

knew that "he is the man who committed the crime," he was forced to acquit

him, giving him the benefit of doubt.

In a 450 page judgment the judge came down heavily on the role of Delhi

Police; “There has been particular inaction by Delhi Police”, he said, while

commenting that the accused’s father may have used his official position to

influence the agencies. “The influence of the father has been there in the

matter and there was deliberate inaction” (at the time his father was second

in command of the police forces in Delhi).

The helmet was found with a shattered safety glass - however the evidence

was so poorly presented that the defense was able to discount it.The court

stated that the rule of law doesn’t seem to apply to the children of those who

enforce it. The release of the accused led to a public outcry which was

56
State(through CBI) vs. Santosh Kumar Singh 2007 Cri LJ 964
supported by the media.57 It pressured the CBI to challenge the verdict in

High Court in 2000.

However till 2006, nothing productive happened. . A massive public chorus

of disapproval swung the media into action, exposing the weaknesses of the

judiciary and CBI. Media covered the public protests, providing a platform

to voice opinions. Journalists campaigned with the public demanding

justice.Priyadarshini’s father, Chaman Mattoo, made frequent appearances

on television.There were discussions, special shows, opinion polls conducted

on news channels. Newspapers and news sites reported the in-depth case

study and questioned the judicial system for their unacceptable approach to

the case.

In August 2006, the case was taken up on a day-to-day hearing basis which

is rare in India. The judgment was delivered within 42 days, awarding the

death penalty to Santosh Singh in October.

Santosh Singh appealed against the death penalty sentence to the Supreme

Court of India on 19th Feb 2007.In October 2010, the Supreme Court upheld

the conviction of Santosh Kumar Singh but reduced the death sentence to

57http://firstterm.acjnewsline.org/upload%20for%20groupC/media%20watch/Priyadarshini%20page.htm visited on 5th

February, 2011.
life imprisonment.Priyadarshini's father expressed disappointment with the

CBI for failing to appeal against this decision.

Jessica Lal murder case

On the night of 30 April, 2010 at 2 AM, when the bar was closed for drink,

Manu Sharma ordered Jessica Lal to serve the drink. The refusal of drink

led to their conflict. Manu Sharma fired the first bullet in the air with his

gun. The second round of bullet was on Jessica Lal and with that round she

died instantly. After extensive hearings with nearly a hundred witnesses, a

Delhi trial court headed by Additional Sessions Judge S. L. Bhayana,

acquitted Manu Sharma and a number of others were acquitted on 21

February 2006. in Jessica Lall Murder case, on 21 February 2006.

In the immense uproar, hundreds of thousands of people e-mailed and SMS-

ed their outrage on petitions forwarded by media channels and newspapers

to the President and others seeking remedies for the alleged miscarriage of

justice. Soon, NDTV, a news channel, received more than 200,000 cellphone

text messages urging retrial. A poll conducted by the newspaper Hindustan

Times showed that on a scale of 1 to 10, the public's faith in law

enforcement in India was about 2.7 Public pressure built up with newspapers

splashing headlines such as "No one killed Jessica", and TV channels

running SMS polls. Models, fashion designers, friends, relatives and others

held candle-light vigils at India Gate in New Delhi to protest the verdict,

followed by an even bigger candle light protest accompanied by a unique

week long t-shirt campaign (slogan: we support re-investigation of Jessica

Lal's murder, let the truth come out) in Manu Sharma's hometown,

Chandigarh. Hundreds of students, MNC executives along with retired IAS

and Army officers participated in the protest.

On 25 March 2006, the Delhi High Court admitted an appeal by the police

against the Jessica Lal murder acquittals, issuing non-bailable warrants

against prime accused Manu Sharma and eight others and restraining them

from leaving the country. A sting operation by the news

magazine Tehelka was shown on the TV channel STAR News, which stated

how the witnesses had been bribed and coerced into retracting their initial

testimony.

On 15 December 2006, the Delhi High Court held Manu Sharma guilty

based on existing evidence and was awarded life imprisonment. In April

2010, the Supreme Court of India affirmed the life sentence for the guilty.

Aarushi Talwar and Hemraj murder case.

Aarushi Talwar, a 14-year-old girl was found dead with her throat slit.

Suspicion immediately fell on the missing servant Hemraj, however

subsequently his body was recovered from the terrace of the house. The case

received nationwide attention due to extensive coverage by the media which

eventually took the shape of trial by media.Media reported the case without

having any concern for the honour of the family in general and the character

of the victim and her father in particular. Every effort was made by the

media to highlight the elements of illicit relationships, adultery, fornication,

mystery and honour killing in a bid to exploit the popularity of daily soaps.

Expressing its annoyance at the way things turned out in the Aarushi murder

case, the Supreme Court asked the media to exercise restraint in reportage of

such sub-judice matters. It observed “extreme caution and care in reporting

such cases was required, as it is not only the reputation of a person but a

person is held guilty even before the trial in the case is over,”

Although the court acknowledged the crucial role played by the media, it

indicated that some guidelines are still required. “The media has a powerful

influence. Not only the print media, even television has reached all blocks

and villages,” the bench said in a balancing act, while expressing the need

for having some kind of regulation in place.

These observations came during the hearing of a public interest litigation

filed by advocate Surat Singh, seeking the court’s intervention to avoid

increasing instances of media trial and recurrences of what happened to

Talwar’s family.

Ruchika Girhotra Case58

This case involves the molestation of 14-year-old Ruchika Girhotra in 1990

by the Inspector General of Police Shambhu Pratap Singh Rathore (S.P.S.

Rathore) in Haryana, India. After she made a complaint, the victim, her

family, and her friends were systematically harassed by the police leading to

her eventual suicide. On December 22, 2009, after 19 years, 40

adjournments, and more than 400 hearings, the court finally pronounced

Rathore guilty under Section 354 IPC (molestation) and sentenced him to six

months imprisonment and a fine of Rs 1,000. The CBI had opposed

Rathore's plea and had sought an enhancement of his sentence from six

months to the maximum of two years after his conviction. Rejecting his

appeal against his conviction by a Central Bureau of Investigation (CBI)

special court, Chandigarh District Court on May 25 sentenced the disgraced

former police official to one and a half years of rigorous imprisonment,

58
S.P.S Rathore VS. CBI Crl.Revision No.1558 of 2010
enhancing his earlier six-month sentence and immediately taken into custody

and taken to the Burail prison. On 11 November 2010, the Supreme Court

granted bail to S P S Rathore on the condition that he should not leave

Chandigarh

Bhopal gas tragedy case, was related to gas leakage incident in India,

considered one of the world's worst industrial disasters. It occurred on the

night of 2–3 December 1984 at the Union Carbide India

Limited (UCIL) pesticide plant in Bhopal, Madhya Pradesh. A leak

of methyl isocyanate gas and other chemicals from the plant resulted in the

exposure of hundreds of thousands of people. The toxic substance made its

way in and around the shantytowns located near the plant. Estimates vary on

the death toll. The official immediate death toll was 2,259 and the

government of Madhya Pradesh has confirmed a total of 3,787 deaths related

to the gas release. Others estimate 8,000 died within two weeks and another

8,000 or more have since died from gas-related diseases. A government

affidavit in 2006 stated the leak caused 558,125 injuries including 38,478

temporary partial and approximately 3,900 severely and permanently

disabling injuries.

UCIL was the Indian subsidiary of Union Carbide Corporation (UCC), with

Indian Government controlled banks and the Indian public holding a 49.1
percent stake. In 1994, the Supreme Court of India allowed UCC to sell its

50.9 percent share. Union Carbide sold UCIL, the Bhopal plant operator,

to Eveready Industries India Limited in 1994. The Bhopal plant was later

sold to McLeod Russel (India) Ltd. Dow Chemical Company purchased

UCC in 2001.

Civil and criminal cases are pending in the United States District

Court, Manhattan and the District Court of Bhopal, India, involving UCC,

UCIL employees, and Warren Anderson, UCC CEO at the time of the

disaster. In June 2010, seven ex-employees, including the former UCIL

chairman, were convicted in Bhopal of causing death by negligence and

sentenced to two years imprisonment and a fine of about $2,000 each, the

maximum punishment allowed by law. An eighth former employee was also

convicted, but died before the judgment was passed.

Media should acknowledge the fact that whatever they publish has a great

impact over the spectator. Therefore, it is the moral duty of media to show

the truth and that too at the right time and also to ensure that its way of

functioning does not result in the violation of the rights of the people which

are succinctly referred to as human rights.

 JUDICIAL RESPONSE

Indian Courts have constantly been faced with tenuous issues resolving

around interpretation of freedom of Media. It was felt that the concept of

free media is integral part of Article 19 (1)(a) and Article 21 during the last

few years. The opinion of the Apex Court in a new leading cases are

reproduce hereunder.

In M.P. Lohia vs. State of W.B59, the Supreme Court has warned the media

against indulging in public trials when the matter is sub judice .In the

absence of a prompt legislative intervention, the judiciary can take the lead

in framing guidelines for reporting on sub judice matters. The freedom of the

media not being absolute. Media persons connected with the print and

electronic media have to be equipped with sufficient inputs as to the width of

the right under Art 19(1) (a) and about what is not permitted to be published

under Art 19(2). Aspects of constitutional law, human rights, protection of

life and liberty, law relating to defamation and contempt of court are

important from the media point of view.

59
(2005) 2 SCC 686.
In S.Khushboo vs. Kanniammal & Anr60. The Supreme Court observed that

it is not only desirable but imperative that electronic and news media should

also play positive role in presenting to general public as to what actually

transpires during the course of the hearing and it should not be published in

such a manner so as to get unnecessary publicity for its own paper or news

channel.Such a tendency,which is indeed growing fast,should be stopped.

The Supreme Court once again in State of Maharashtra vs R.J.Gandhi61,

where an eight year old girl was raped in Kolhapur,confirming the

conviction and adverting to the harm caused to the victim, observed that

trial by press, electronic media or public agitation is very antithesis of rule of

law. It can well lead to miscarriage of justice. A judge has to guard himself

against such pressure and he is to be guided strictly by rule of law. A free

press is the sine qua non of a democratic society and is a bulwark of freedom

of speech and expression and freedom of information62.

In R.K.Anand vs. Delhi High Court63,the Supreme court examined important

question relating to trial by the media.The case arose out of a sting operation

carried out by a private television channel,NDTV to expose the unholy

60
AIR 2010 SC 3196,para 32
61
AIR 1997 SC 3986
62
Such arguments are reflected in the Commonwealth Privacy Act, wherein the media has been excluded
from the purview of privacy.
63
(2009)8 SCC 106
nexus between the prosecution,its witness and the defence in the infamous

BMW hit and run case resulting in the death of six persons by a speeding

BMW car driven by the scion oa a wealthy and influential family.While the

trial was still pending eight years after the incident,NDTV telecast a sting

operation to expose the manner in which a senior Advocate appearing for the

accused was negotiating,with the help of the Special Public Prosecutor,a sell

out in favour of the defence.Suo motu contempt proceedings were initiated

by the Delhi High Court.The Supreme Court held that NDTV was not guilty

of indulging in trial by media.

And in its latest verdict in Sahara India Real Estate Corp. Ltd. vs.Securities

& Exchange Board of India Maintaining that the right to open court trial

was not absolute, the Supreme Court ruled that courts could restrain the

media from reporting certain cases to avoid any prejudice to fair trial. A

five-judge constitution bench headed by Chief Justice of India (CJI) SH

Kapadia held that the Supreme Court and the High courts had the powers

to prohibit temporarily media statements detrimental to the judicial

process. This can be done on a petition filed by an aggrieved party, even a

suspect in a criminal case.The CJI, said journalists needed to know their

‘lakshman rekha’ as reasonable restrictions on the reporting of court

proceedings were required.The court observed that “Such orders of

postponement of publicity shall be passed for a limited period and subject

to the courts evaluating in each case the necessity to pass such orders …,”

the bench said.

The court, however, refused to lay down guidelines for the media, saying,

“There is no general law for courts to postpone publicity, either prior to

adjudication or during adjudication, as it would depend on facts of each

case.”

The profession journalism is under question mark and now the mantra is

“News is what sells”.The problem with the media’s judicial activism is that

it only campaigns for cases that appeal to its market and its

imagination.When Outlook editor Vinod Mehta asked on Ms Barkha Dutt’s

show,whether she would be as zealous about a case in Gorakhpur,she

responded without missing a beat:”probably not.These cases work for our

audiences because they work for the people like us”.64

64
Sevanti Ninan,”Trials on the Tube”,The Hindu Magazine(Delhi Edn),12-11-2006
 CONCLUSION & SUGGESTIONS

The media enjoys the fundamental right of free speech on par with

individual citizen, it is more powerful than that of ordinary citizens because

it is organised. Media rightly enjoys the free speech right. But there are also

certain negative aspects, which cannot be ignored. Today the press and

media instead of being a noble profession is largely being considered a

business. This commercialises the press and thereof arises the danger of

media eroding the civil rights of the citizens. It is here that law assumes

importance which must find out ways and means to restrict the monopoly

trends in the media business and also look into the problem of media

violation of individual’s rights.

Today the media has become very powerful and clearly shapes the public

opinion and might even affect professionally trained judges. Hence, freedom

of media also entails a certain degree of responsibility. But the media, so as

to get attention in the highly competitive market often distort facts,

sensationalize the news, and indulge in intrusive practices during news

gathering which often impede the privacy of the people who are the subject

of such coverage. The problem finds it worst manifestation when the media

extensively covers matters sub judice and publishes information and

opinions which are clearly prejudicial to the interests of the parties and

vitiates the constitutional right of the parties to receive a fair trial.This

problem is especially acute in respect of criminal trials and matters involving

celebrities, where media reporting can swing popular sentiments either

way.This has been popularly termed as –trial by media. The Supreme Court

of India has defined the term to mean “the impact of television and

newspaper coverage on a person’s reputation by creating a widespread

perception of guilt regardless of any verdict in a court of law.”

This may have the effect of denying the accused the right to have a fair trial

as the eminent lawyer Mr Ram Jethmalani once pointed out. This calls for a

balance between the constitutional guarantees of ‘freedom of press’ on one

hand and the ‘right to fair trial’ on the other.

Thus media and journalists carry heavy responsibility in any society and are

supposed to behave as a votary of human rights and democracy and not as

violators of these canons. By indulging in media trial, press violates the

basic human rights of the accused. Infact media trial has now moved on to

media verdict and media punishment which is an illegitimate use of

freedom. Having said that it is imperative to mention here that media trial is

also an appreciable effort as along with the sting operations it keeps a close
watch over the investigations and activities of police administration and

executive. But there must be a reasonable self-restriction and due emphasis

should be given to the fair trial and court procedures must be respected with

adequate sense of responsibility. Throwing light on the limitation of

investigative journalism, P.M Bakshi says that “these limits primarily flow

from the right to reputation, the right to privacy and the law of contempt of

court.”65

Media needs to understand its limit before it is too late. Suspects and

accused apart, even victims and witnesses suffer from excessive publicity

and invasion of their privacy rights. Police are often presented in poor light

by the media and it demoralises them. It is rare to come across a news report

praising the good work done by police and other law enforcement agencies

Restriction on media trial is necessary so that the people may not have a

wrong perception of the administration of Justice system. The main legal

remedy against the problem of prejudicial reporting on sub judice matters is

that of the power of judges to punish for contempt which has been put as a

reasonable restriction under Article 19(2) of the Constitution. Also, to ensure

that the media and public opinion do not interfere in the administration of

justice, we have the Contempt of Court Act 1971 in India which lays down
65 P.M Bakshi, Constitution of India, Universal Law Publication, 2008.p.43.
the power of judges to punish for criminal contempt in instances of

scandalizing the court, prejudicial acts and the obstruction of justice. It has

been argued by some that giving such vast powers to court will stand in the

way of right of free speech but as we have seen in recent times with the

media often transgressing its limits that such a power is necessary.

Media should acknowledge the fact that whatever they publish has a great

impact over the spectator. Therefore, it is the moral duty of media to show

the truth and that too at the right time and also to ensure that its way of

functioning does not result in the violation of the rights of the people which

are succinctly referred to as human rights

In this work, I have dealt with opinion of several jurists on whether media

influences the judiciary and what are the laws to deal with this. I have also

discussed whether the media is permitted to influence the judges under their

fundamental right of freedom of expression guaranteed by the Article

19(1)(a) of the Constitution or whether there are restrictions on such right.

This work also relates situations when the media may face contempt of court

for trying to mislead the judges. Thus it discusses the need for the media to

be responsible and not create hurdles in administration of justice.

Media and public opinion came to limelight in the wake of democratic set-

up. The governmental policies gradually became the function of opinion

rather than of force and it was a welcome change. However, with the

increase of its power, media started crossing the thin line between freedom

of speech and right of accused of fair trial by deciding on matters sub judice

and thus encroaching upon proper functioning of constitutional

mechanisms.Time and again, the courts have expressed their concern over

the ‘trial by media’and said that the functions of the court could not be

usurped by any other authority in a civilized society. The case with Punjabi

Pop singer Daler Mehndi, who faced humiliation and pseudo trial through

media. The Arushi Talwar case too has raised several troubling questions for

the media and the police, questions that strike at the heart of the process of

investigation and news reporting. The worst effect of these irresponsible acts

by media is that they often end up in influencing the judges. This is against

the constitution as the judges should be independent and should not be

affected by any outside opinion. But media often creates such hue and cry

regarding certain cases that it almost becomes impossible for a judge to

ignore it and may get influenced.

As I have already discussed in this work, judges are human beings and might

get affected subconsciously by these media trials and opinions. This is

detrimental to the interest of administration of justice. Hence, there is indeed

law with its force of sanction required to curb such irresponsible behavior by

the media. Contempt of Courts Act 1971 serve the purpose. However, we

must understand that the long term solution in this respect lies in respect of

self-regulation by both the media and the judiciary.

Suggestions

While reporting the media should keep the following in mind:

1. There is an obligation on the media agencies to ensure fair and accurate

reporting of proceedings. This is a cause for concern since it is a very

common occurrence to come across news-reports wherein statements made

by judges and lawyers in the courtroom distorted and cited without an

explanation of their context.

2. In some kinds of cases there is a compelling need to protect the identity

and privacy of parties in order to safeguard their interests and ensure a fair

trial. Ordinarily judicial proceedings should be open to public scrutiny, but

there is a need to check the same in some circumstances. For instance news

agencies should not disclose the identity of victims of sexual offences.

Furthermore, our procedural laws provide for in camera proceedings in

family-related disputes as well as in rape trials so as to protect the victims as

well as the witnesses from undue pressure. In fact, in respect of the interface

between media freedom and criminal law, one of the Siracusa principles

(1984) stipulates:

All trials shall be public unless the Court determines in accordance with law

that:

(a) the press or the public should be excluded from all or part of a trial on

the basis of specific findings announced in open Court showing that

the interest of private lives of the parties or their families or of

juveniles so requires; or

(b) The exclusion is strictly necessary to avoid publicity prejudicial to the

fairness of the trial or endangering public morals, public order or

national security in a democratic society.

3. There is an obligation on media to check prejudice against parties which

can arise as a consequence of reporting on sub judice matters. As Justice

J.D. Kapoor observed while pronouncing the verdict in the Bofors pay-off

case, ‘Fairness of trial is of paramount importance as without such a

protection there would be trial by media which no civilised society can and

should tolerate.’
The media is the watchdog to see that every trial is conducted fairly and

openly. But the watchdog may sometimes break loose and has to be

punished for misbehavior .The interference in the judicial process even

though an indirect one by a parallel trial in the media is against the

constitutional right of fair trial of the accused. Such act “virtually substitutes

the actor” and amounts to “subverting the Constitution”. The courts have

always zealously guarded the freedom of the press and it puts media under

the obligation to abstain itself from trespassing in the judicial sphere.

No doubt considering inter alia the high chances of distortion of

facts,bribing the court and law enforcement officials, pressurizing witnesses

to change statements, media is duty bound to keep track of the trial.

Nonetheless overzealous attitude-may well lead to compromise on one of the

most fundamental rights in any civilized society-the right to be presumed

innocent until proven guilty,by a court of law.Draconian measures to

regulate media trial can boomerang because then injustice may be caused to

the victim if a guilty person is let off on the grounds of a mistrial.Self

regulation by the media itself seems to be curbed and journalism with

responsibility should be encouraged.Media should not plat a dubios game in

the administration of justice.Reacton of media,reaction of masses and other

side effects should not be permitted to emerge as a consideration,while

delivering judgement and the day when such consideration is taken into it

shall be a doomsday for the legal superstructure.

Heinous crimes must be condemned and the media would be justified in

calling for the perpetrators to be punished in accordance with the law.

However, the media cannot usurp the function of the judiciary and deviate

from objective and unbiased reporting.

 BIBLIOGRAPHY
Books:

1. Jain, M.P; Indian Constitutional Law, 46th Edition Wadhwa &

Company Nagpur.

2. Kumar Narendra; Constitutional Law of India 10th Edition, CLA

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3. Bakhshi, P.M., The Constitution of India, Universal Law Publishing

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4. Bansi Manna; Media Freedom – A changing status

5. Thakurta Paranjoy Guha; Media Ethics-Truth, Fairness and

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6. Divan Madhvi Goradia, Facets of Media Law, Eastern Book

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7. Clark and Hutchison; Mass Media and the Law : Freedom and

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8. Ramachandran, V.G. Contempt of Court, 6th Edition Eastern Book

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1. Kumar Virendra, Free Press and independent Judiciary : Their

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1. Challa, Dr. Ms. Kaumudhi, Media Coverage of legal proceeding vis-

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2. Ray Justice G.N.; Reporting of Court proceedings by Media and

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Reprint, Universal Law Publishing Co. Pvt. Ltd.

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3-3

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